In a recent article for Inside Health Policy, Thorn Run Partners’ Senior Vice President Shea McCarthy discussed the GOP’s Preexisiting Conditions Protection Bill and its signal towards the end of the GOP’s ability to use the Affordable Care Act as a strategic rallying message. “If last year’s ‘repeal and replace’ effort offered a lens into the GOP’s nuanced positions on Obamacare, the introduction to enshrine the law’s key consumer protections bring those distinctions into even clearer focus,” said McCarthy. “As the Trump administration backs a lawsuit that would gut the law’s insurance reforms, this cadre of ideologically-diverse Republicans are sending the clearest signal to date that they support many of the ACA’s key tenants.” Additionally, McCarthy astutely pointed out that while debates over the law’s subsidy structure may continue over time, “It’s difficult to contemplate at this point another serious effort to undo the ACA root and branch.”

GOP senators' move to protect many of the Affordable Care Act's market reforms, which are under threat from a Texas lawsuit, signals that Republicans are finally ready to embrace key provisions of the law and end their years long effort to fully repeal it, says one lobbyist. The bill could also give the Texas judge the confidence to rule against the ACA knowing that Congress is willing to step in, says another source. However, the legislation doesn't offer the same broad protections as the ACA since it still allows plans to exclude coverage of a preexisting condition and to charge higher premiums due to age or gender, leading advocates and Democratic lawmakers to label the bill a gimmick.

“Oral arguments in Texas v. United States will begin on September 5th, and if the judge rules in favor of the plaintiffs, protections for patients with pre-existing conditions could be eliminated,” a joint release from several sponsors says.

Tillis said the legislation is “a common-sense solution” to guarantee those with preexisting conditions will have health coverage, regardless of the court's ruling.

“There are strong opinions on both sides when it comes to how we should overhaul our nation’s broken health care system, but the one thing we can all agree on is that we should protect health care for Americans with pre-existing conditions and ensure they have access to good coverage,” Tillis said.

The bill was sent to the Senate health committee which has not yet made plans for a hearing.

“Don’t let there be any confusion about it–Americans with pre-existing conditions are going to have protections against being denied coverage or charged more for their condition,” Alexander, who chairs the health committee, added.

He said he looks forward to finding other coverage options for individual with preexisting conditions, including through the new association health plans.

The senators' release points out that a decision in favor of the states, who seek to scrap the entire ACA, would threaten protections for those with preexisting conditions. The release does not mention that the defendant in the case, the Department of Justice, is also calling on the court to scrap those provisions. DOJ agrees with the GOP-led states that the ACA will be unconstitutional without a penalty for failing to have coverage, but says that only certain provisions — including the requirement that all people be granted coverage regardless of preexisting conditions and the ban on health underwriting — are inextricably linked to the mandate and should be thrown out. DOJ is defending the other sections.

Sources note that for GOP lawmakers to put forward a bill that proclaims to protect those with preexisting conditions at the same the DOJ is arguing that similar protections should be invalidated could influence the case. The judge could potentially think that Congress will fix any damage done if he enjoins law, says one source.

But, the move also shows the GOP is nervous about the outcome, and understands how critical the protections are to their constituents and to their own political future.

One lobbyist suggests the legislation could signal the end of the GOP's ability to use the striking the ACA as a rallying point.

“If last year’s ‘repeal and replace’ effort offered a lens into the GOP’s nuanced positions on Obamacare, the introduction of legislation to enshrine the law’s key consumer protections bring those distinctions into even clearer focus,” Shea McCarthy of Thorn Run says. “As the Trump administration backs a lawsuit that would gut the law’s insurance reforms, this cadre of ideologically-diverse Republicans are sending the clearest signal to date that they support many of the ACA’s key tenants. While national Democrats are hoping that health care reform will be among their most potent attacks in the midterms, moderate Republicans likely see the measure as insulation against this forthcoming political offensive.”

“The legislation could very well be seen as final stake in the heart of full-scale Obamacare repeal. While nuanced debates over the law’s subsidy structure, waivers, and taxes may continue for years, it’s difficult to contemplate at this point another serious effort to undo the ACA root and branch,” he adds.

Advocates and Democrats also point out that despite its title, the GOP bill does not ensure full protections for those with preexisting conditions.

Larry Levitt, vice president for health reform at the Kaiser Family Foundation wrote on Twitter that the legislation does not include the ACA's ban on preexisting condition exclusions, even though the measure would be knocked out if the court rules in favor of the plaintiffs or the DOJ. Without such a ban, someone who has been diagnosed with cancer could not be denied general coverage, but the health plan could refuse to pay any cancer- related medical claims. The bill also allows premium adjustments due to other factors such as age and gender, Levitt said.

“If Republicans are serious about protecting health care for millions of families, they should join Democrats to defend patient protections already in place and work with us on solutions that actually drive down costs for families and prevent health care discrimination based on age, gender, or pre-existing conditions instead of cheering President Trump’s efforts to undermine families’ health care, raise costs, and expand loopholes that give power back to insurance companies,” Murray said.

Families USA Executive Director Frederick Isasi stressed in a statement that congressional Republicans and the White House spent the past year trying to pass legislation that would have decimated financial support for subsidies and Medicaid expansion and made it easier for plans to discriminate. “The recent legislation introduced in the Senate provides a false promise to families,” he says. “While the bill purports to bar insurers from discriminating against people with preexisting conditions, without the financial support under current law–which congressional leaders and the president have fought to end–real coverage would be all but impossible for families and individuals to purchase.”